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Aspects of Un-registered Trade Marks
The difference between registered and un-registered trade marks can be seen in the symbols used. For registered trade marks theR in a circle is used together with the phrase, logo, symbol, word or shape and looks as follows: ® whereas the symbol for un-registered trade marks is a TM after the particular word, phrase, logo, shape or symbol and looks like this: ™.
To use the R symbol, a trademark must be registered officially at the Trademark Office and provides the owner thereof with legal protection against dilution, generalisation, infringement and copying of the mark.
Un-registered trade marks are considered marks well associated with a specific product or service and by placing the TM at the mark, people are notified of the rights to the mark. Passing off is a means of infringing on a TM marked item, and by means of common law, action can be taken against the infringer.
The question often asked is whether it is still worth it to register a trademark and pay all the costs if one can simply brand with a mark and place a TM after the mark. It is certainly easier to do the latter, but if a person or company wants legal grounds for litigation against infringement of any kind, then registration is positively recommended. It is illegal to use the R in the circle for any product for which the specific trademark has not been registered.
Businesses are competitive and when a company fails to register a trademark for a particular product, the door is left open for another to imitate in a sense which makes it difficult to take against the infringer.
It is best to register the mark by completing the application forms and providing the relevant documentation as well as paying the associated fees. It is also recommended that you trademark in every country where you intend to export to or do business.
Contact us for legal assistance regarding infringement of un-registered trade marks and for assistance in registering trademarks in South Africa and abroad.
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